It is also confined to the locality of actual war. Martial rule can never exist where the courts are open, and in proper and unobstructed exercise of their jurisdiction. As necessity creates the rule, so it limits its duration for, if this government is continued after the courts are reinstated, it is a gross usurpation of power.
WILL MARTIAL LAW BE DECLARED IN US FREE
The salient passage of the Court’s opinion bearing on this point is the following: If, in foreign invasion or civil war, the courts are actually closed, and it is impossible to administer criminal justice according to law, then, on the theater of active military operations, where war really prevails, there is a necessity to furnish a substitute for the civil authority, thus overthrown, to preserve the safety of the army and society and as no power is left but the military, it is allowed to govern by martial rule until the laws can have their free course.
WILL MARTIAL LAW BE DECLARED IN US TRIAL
reverting to the older doctrine, pronounced President Lincoln’s action void, following his suspension of the writ of habeas corpus in September, 1863, in ordering the trial by military commission of persons held in custody as spies and abettors of the enemy. The Civil War being safely over, however, a divided Court, in the elaborately argued Milligan case, 6 FootnoteĮx parte Milligan, 71 U.S. although not dealing directly with the subject of martial law, gave national scope to the same general principle in 1863. The decision in the Prize Cases, 5 FootnoteĦ7 U.S. In this case, the Court found that the Rhode Island legislature had been within its rights in resorting to the rights and usages of war in combating insurrection in that state. that state declarations of martial law were conclusive and therefore not subject to judicial review. In the early years of the Supreme Court, the American judiciary embraced the latter theory as it held in Luther v. By the second theory, martial law can be validly and constitutionally established by supreme political authority in wartime. that is to say, martial law is not established by official authority of any sort, but arises from the nature of things, being the law of paramount necessity, leaving the civil courts to be the final judges of necessity.
Dicey, Introduction to the Study of the Law of the Constitution 283, 290 (5th ed. Fairman, The Law of Martial Rule 20–22 (1930) A. The first, which stems from the Petition of Right, 1628, provides that the common law knows no such thing as martial law 1 FootnoteĬ.
Two theories of martial law are reflected in decisions of the Supreme Court. The President shall be Commander in Chief of the Army and Navy of the United States, and of the Militia of the several States, when called into the actual Service of the United States he may require the Opinion, in writing, of the principal Officer in each of the executive Departments, upon any Subject relating to the Duties of their respective Offices, and he shall have Power to grant Reprieves and Pardons for Offences against the United States, except in Cases of Impeachment.
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